You're Entitled To Your Own Opinions, But Not Your Own Facts About Copyright, NY Times Edition

from the fact-checking-is-dead dept

The NY Times has an op-ed piece by Jonathan Taplin, claiming that Silicon Valley hates music, that is so chock full of out and out factual errors that it's an embarrassment for the NY Times to have allowed it to be published. Is fact checking dead at the Gray Lady? It's perhaps not as embarrassing for Taplin, who's been spewing ridiculous falsehoods for years about how technology is out to destroy all creative culture. In the past we've had to correct his blatantly false statements, but it seems odd to us that the NY Times would let him publish a piece so devoid of facts. Let's dig in and do some editing and fact checking that the NY Times apparently failed to do.

That’s a fight artists are losing. It’s been 17 years since Napster, the online file-sharing software, began flooding the Internet with free, illegally uploaded music, devastating musicians and the industry. While Napster is long gone, the looting continues, only now it is technology giants like Google and SiriusXM, along with streaming services like Pandora, that are responsible.

This is an interesting, and bizarre, claim, given that unlike Napster, the three companies named all pay a ton of money in license fees for the works in question. In fact, both SiriusXM and Pandora have struggled to reach profitability in large part because of the massive percentage of revenue that goes directly to record labels (note: not directly to the musicians themselves, which may give you a hint as to the real problem). Last fall, Pandora noted that it had paid $1.5 billion in licensing, with over $500 million of that coming in 2015 alone (and this was before the year ended). The company has shown that approximately 60% of revenue goes to licenses, and this is a capital intensive business, given that it has to stream a ton of content and bandwidth for that level of streaming is not cheap. Spotify, similarly, has claimed to pay out approximately 70% of revenue. A year ago, Spotify claimed to have paid out $3 billion, noting a run rate of over $1 billion paid to artists per year. YouTube has similarly paid out over $3 billion.

It takes quite a lot of gall to argue that these services, which didn't exist at all just a few years ago, but which have consistently moved people away from piracy by creating services that people like -- and which often pay more than 50% of their revenue in royalties, are somehow "looting" the industry. Does he not realize that without these services, it's likely that there would actually be more piracy, from which the artists would receive no direct remuneration? Would he prefer that? Or would he prefer that these companies be forced to pay even more so that they couldn't even exist any more at all, which would, once again, drive people right back to piracy? It makes no sense at all. To call this "looting" is nonsensical and not fact-based.

YouTube, which is owned by Google, is now the world’s dominant audio streaming platform, dwarfing Spotify and virtually every other service. Yet it pays artists and record companies less than a dollar a year for every user of recorded music, thanks to rampant piracy on its site (by contrast, Spotify licenses its music and pays $20 per user each year).

This is comparing apples to oranges. Spotify is just a music service. YouTube is mostly other stuff, with some music. Notice that he doesn't compare Spotify to YouTube Red or to Google Music, which are more on par.

The problem has gotten so bad that, in 2015, vinyl record sales generated more income for music creators than the billions of music streams on YouTube and its competitors.

This point was a talking point that the RIAA trotted out earlier this year and has already been debunked. Vinyl HAS NOT generated more income for music creators than music streams. That's just blatantly false. What the RIAA showed was that gross retail value of vinyl sales (i.e., ignoring actual sales price, as well as the cut that goes to retailers and other middlemen) was higher than the net amount that was paid in royalties on just ad-based music streaming (i.e., ignoring all of the subscription and paid revenue). This is worse than an apples to oranges comparison. And, even then, with those caveats, Taplin's claims go way beyond what the RIAA actually showed. The royalties from vinyl that actually went back to artists were a lot less than what went to artists from ad-supported music streaming, not to mention all music streaming.

Either Taplin is lying or he's totally misinformed.

Google has also leveraged its dominance in Internet search into a cash cow built on advertising. But Google doesn’t care if your search for the movie “Mean Streets” or the music from “The Last Waltz” (both of which I produced) brings up licensed versions or pirated copies: The company sells ads and cashes in either way. Creators, however, get nothing from those stolen copies — except the anguish of watching others grab the value of their life’s work.

Okay, let's try it. I searched for "Mean Streets" on YouTube and on Google's video search. I don't see a pirated copy anywhere. YouTube does show me a licensed version and a variety of obviously fair use clips (all less than 5 minutes). Google Video search seems to just show me the theatrical trailer and some fair use clips.

In neither search do I see an unlicensed version. A regular (not Google Video search) Google search again points to clips, but also has multiple options on where you can pay to see a licensed version. I don't see a pirated version anywhere.

Google has basic “digital fingerprinting” technology that could scrub both YouTube and its search results of illegal versions. But instead of safeguarding the work of artists, Google wields this tool as a bludgeon. Creators can either enter into a licensing agreement with YouTube at very low royalty rates, or get left at the mercy of pirates. What looks like protection for copyright holders is more of a protection racket benefiting Google.

This is blatantly false. Not only is it blatantly false, but just last week at the Copyright Office hearings in San Francisco that Jonathan Taplin attended, when someone claimed this, Fred von Lohmann from Google pointed out that it is absolutely false -- something he has now reiterated on Twitter:

What Taplin is (apparently willfully?) confusing, is that in order to use ContentID, you do need to grant Google a license, but that license is to make it legal for them to then hold the copy of the work on file for the purpose of fingerprinting. And, then, you can use ContentID to do "notice and staydown" of any matching copies. To blatantly misrepresent how Google works just days after being told this is wrong just seems... like someone with an axe to grind with no concern for the facts at all.

And all of that raises the question of why the NY Times allowed it to be published without doing even the slightest fact checking?

Unfortunately, there is a sad history of undervaluing musicians in the United States. Terrestrial radio, a $17 billion industry, pays publishing rights (payments to songwriters) but has never paid artists or record companies for music.

Yes, some could make an argument that this setup is unfair, but the market suggests otherwise. The reason that the law said that performers didn't need to be paid was because it recognized that radio was promotional. And it is. That's why every few years the recording industry gets caught up in a new scandal about payola. That is, the copyright holders of the sound recordings have long recognized that radio play is so valuable that they will pay extra money under the table to make it happen, even if that's illegal. Obviously, if the radio play wasn't so valuable, this wouldn't be happening. And yet now they want to get paid extra for that value? That seems to be the exact opposite of what the market suggests is the power dynamic here.

In addition, the satellite radio company, SiriusXM, pays below-market royalties, thanks to a giveaway it first wrested from Congress 20 years ago.

"Below market"? Based on... what? Again, SiriusXM has struggled to barely reach profitability. After years of losses, it has been profitable recently, but just barely.

Conglomerates like iHeartMedia (formerly Clear Channel Communications) and other online services like Pandora, which are required to pay artists for digital streams, have exploited federal copyright law to deny payments for work recorded before 1972 (songwriters are paid; performers are not). This means artists like Aretha Franklin, Ella Fitzgerald, Chuck Berry and John Coltrane never received a dime from AM/FM radio and or from many digital services for some of their greatest music.

The pre-1972 stuff is a long and complicated story that we've covered in detail, and has a lot more to do with the fact that pre-1972 sound recordings are not covered by federal copyright law than any willful plan to "exploit" anyone. And there's a simple solution to this: put those works under federal copyright law. But you know who's fought hard against that? Taplin's friends in the RIAA. Maybe he should take it up with them. He also ignores, of course, that Pandora recently agreed to pay $90 million for those recordings, despite it not being clear if it needs to, legally. Is Taplin asking how much of that money will actually go to artists? Hmm...

The last meaningful legislation in this area was the Digital Millennium Copyright Act in 1998, which was based on the idea that creators should monitor the Internet for illegal copies of their works and give “notice” to websites and services to take pirated material down. Under the act’s “safe harbor” provisions, any service or site that makes a minimal effort to address these notices is immune from liability for piracy or theft.

"Minimal effort"? He seems to be ignoring the vast number of lawsuits, including the one against Veoh, in which Veoh won, but had to shut down over legal fees. It also ignores the fact that basically every other platform spends a ton of money handling takedown notices.

And it ignores the fact that most services have implemented filters and tools that go way above and beyond what the law requires. Why would Taplin ignore all of this? Why would the NY Times let him do so?

That system may have made sense when it took minutes to download an illegal song. But today no individual can effectively police the millions of pirated files that mushroom online and reappear the instant after they are taken down. Google alone received almost 560 million takedown notices in 2015.

And, again, Google spent $60 million building ContentID and related tools that go way beyond what the law requires and gives copyright holders the ability to either monetize their works in new ways or to issue a "notice and staydown".

There are two concrete steps Congress can take that would allow musicians to be treated fairly. First, Congress should update the safe harbor rules of the copyright act to achieve the balance that was intended: protecting creators with effective tools in exchange for not burdening Internet companies with liability. That means strong, well-defined consequences for repeat offenders, easing the process for filing notices and ensuring that services are using the best technology to take pirated material off their sites and keep it off.

So, basically, after flat out lying throughout the piece, and pretending that Google doesn't already have these tools, he wants a law to require such tools. Note: Google already has everything Taplin is asking for. But it spent $60 million putting that together. If Taplin got what he wanted, he'd lock in Google/YouTube as basically the only players able to handle this market. Does he want new providers and services or is he trying to kill the market entirely?

Second, Congress can address the original sin of AM and FM radio and close the loophole that allows radio companies to use music without paying artists. The Fair Play Fair Pay bill, which has Representative Jerrold Nadler of New York as a sponsor, would ensure that all music creators received fair-market-value pay for their work no matter what technology or service was used to play it. It has the support of hundreds of artists like Rosanne Cash, Duke Fakir of the Four Tops, Elvis Costello, Martha Reeves, Elton John and Common.

Again, given payola, it's hilarious for him to argue that this is necessary, but he's entitled to his opinion -- just not his own facts.

In 2015, after years of battling pirates, Prince said in an interview that the Internet “was over for anyone who wants to get paid.” With Congress’s help, it needn’t be.

Prince was wrong then and he's wrong now. There are more musicians making money from the internet today than ever made money prior to the internet. There are content creators using YouTube, Spotify, Songkick, Soundcloud, Amazon, Apple, Kickstarter, IndieGogo, Patreon and many, many more services to not just make money but to build strong and lasting relationships with their fans.

Again, it's no surprise that Taplin would lie. It's kind of his thing when it comes to his misguided and misinformed anger at the very innovation that's saving the entertainment business. The question is why the NY Times, a paper that prides itself on accuracy, would allow a piece so blatantly false to be published.

But, really, the most disturbing thing about this is that it perpetuates the myth that it's "content creators" v. "the tech industry." This is nonsense. Technology has been a major force in enabling more content creators -- including myself -- to create content, to promote it, to distribute it, and to monetize it. More people than ever before are making and distributing music, videos, books, software and more... because of these tech platforms. This isn't a zero sum game. There are opportunities for everyone to benefit, and setting up this false dichotomy that when one wins the other loses, Taplin and the NY Times are actually setting everyone up to lose by not just misrepresenting reality, but totally misunderstanding the very nature of both creativity and innovation.

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Youtube and Google

I have bought more music in the past year **because** of Youtube and Google than I have over the past decade. I used to buy a bit of music and then fell out of the habit. Local radio became insufferable, and then our basic cable dropped Fuse. So, if I wanted to continue to enjoy music, I was going to have to look for the appropriate way to buy (yes, I purchase my music). Many artists make their albums available on Youtube which encourages me to purchase more. Yes, free access to try out music makes me feel more confident in my purchases. As a result, I make more purchases. Then, when I find an album to purchase, Google helps me with Google play.

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Bandcamp for me. The ability to listen to an entire album(several times usually) prior to purchase to allow me to decide if I want to pick it up has led me to buying more music in the past few years than the rest of my life combined.

Being able to *gasp* try before I buy has resulted in a huge number of sales that would not have otherwise happened; the idea of buying an album because I heard a single song from it from elsewhere, or just had someone tell me it was good is not something I'd ever see as reasonable, hence why I didn't buy music before I stumbled across the service, sticking with free 'amateur' stuff instead.

It's funny really, had I been interested in pirating music it's entirely possible that I would have been buying music before, given both Bandcamp and piracy allow one to do the same thing, listening to the music in it's entirety without having to pay first, but because I never bothered with that sort of thing it's only recently that I've begun to buy music.

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"I have bought more music in the past year **because** of Youtube and Google than I have over the past decade."

Back in the Napster days, I bought plenty of music as a direct result of tracks I discovered there, not to mention gig tickets and merchandise.

Once legal services became available (first eMusic, then after the majors killed everything that made that useful, a Spotify subscription), I've consistently been spending more money on music than the average purchaser did during the CD era (no time to check for citations right now, but IIRC the average person bought 3-4 CDs per year, while my current subscription costs about the same as 1 CD per month).

But, according to these morons, none of my Napster era purchases counted because there were some pirate tracks as well, and the current subscriptions don't count because they want to whine about the ad-supported platforms and so conveniently ignore people like me.

It's no wonder these people are so consistently scared and wrong - they create a fantasy universe for themselves to live in that bears no relation to reality.

Pretty sure Recode posted something similar to this and I dropped them from my feeds because of it. Looks like a concerted douchebag effort to capitalize on Prince's death, a talented musician, but also a douchebag in real life. So sick of this garbage being peddled, and conveniently forgetting that copyright was created to benefit the public, not creators.

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I think you are missing a part there and therefore a bit off in your viewpoint...

The Constitution language is pretty clear that Copyright is all about 'promoting the progress' and benefiting the people. If you look at the Constitution creators writings it was a hotly contested issue back then too. The limited monopoly that was created out of it was a "means to to an end" and not the actual desire.

I will agree with you on all counts that it has gotten out of hand and perverted beyond measure.

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If you look at the Constitution creators writings

This 1,000 times. It seems the media and the government would rather we not know that the framers of the constitution left behind many writings pertaining to why the constitution was written the way it was and what the amendments meant. They then try to pervert the meaning solely based on the language of the constitution, totally ignoring the evidence from writings that go with it.

Re: copyright for the benefit of the creators

Patently false at least in the US where the purpose is explicitly

to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.—United States Constitution, Article I, Section 8, Clause 8

Copyright is just an attempt at a means to advance "Science and useful Arts".

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The thing I find most interesting here is that, as far as I can tell, the US constitution permits copyright and patent law, but does not require it. It looks perfectly constitutional, to me, to scrap both in their entirety. Not that I think any such thing will happen, but it would make an interesting bargaining chip (apart from some pesky little treaties)...

Whence journalism

There was a day, when journalism was king and the government and corporations trembled before it. But the journalistic bastions of yesterday are gone, replaced by the boot-licking propaganda mills of today. Facts are also long gone, replaced by self-interested fables taken gratefully from corporate or government press releases and reported with wide-eyed earnestness.

This guy..

I was a teenager in the 90s and have a whole lot of CDs to show for it. I bought music, and because of it, became very wary of albums because so many had 3 good songs and the rest were terrible. Why was I paying $16 for a CD where 8/11ths of the tracks were junk?

Then along came the internet and I was able to listen to a whole album before I decided to buy. Sometimes the 3 good songs outweighed the mediocre and I bought the album anyway, but a lot of times I just skipped the album that the radio was pushing because it sucked (and the only reason people bought it was because it was on the radio).

A lot of these people seem to want to go back to the time where they could put a little bit of good music and a whole lot of cow excrement in a box, put a ribbon on it, and sell it like the whole thing was filled with gold. They blame the technology companies for keeping them from (ab)using this business model any more.

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Why was I paying $16 for a CD where 8/11ths of the tracks were junk?Because the news media conveniently ignores the fact that there was price fixing and collusion in the 1990's to keep CD's at a set price. Like people said then, if all electronics fell in price, why were CD's consistently sold at $19.99?

People tend to want to defend their revenue streams...

The labels have been not just poor custodians of the music industry but outright heinous in how they actually treat content-creators.

The sorts like Prince or Roger Waters or Gene Simmons who actually made their bank are the exceptions. Buried in the ground on which they stand are the countless artists who never saw a penny for their work getting publicity.

And the RIAA still has the gall to say that they support the artists.

PS: They'll lie without hesitation in defense of their methods, so don't expect any of their numbers to be fact-checked.

Re: People tend to want to defend their revenue streams...

"The sorts like Prince or Roger Waters or Gene Simmons who actually made their bank are the exceptions"

The funniest thing about Prince being included in the conversation is how publicly he battled with the label he was signed to in the 90s. If the likes of Prince and George Michael had to fight to get the terms and compensation they felt were fair, imagine what other acts were subjected to without their kind of leverage. It's been written very publicly by veterans of that era how bad it was for most. Yet, that era is defended as if it was a utopia for artists. It boggles the mind.

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Of course they are. Everyone knows musicians are just leeches that take and take and take without giving anything back. Why, without recording companies and industry groups like RIAA, nobody would know what music even sounds like!

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As people move towards free culture and away from mass-produced content, the gatekeepers will dig in harder till all they've got left is iron-fisted control over a tiny patch of IP real estate, and believe me they will a) guard it jealously and b) blame teh ebil pirates for the state they're in.

To speed this process up we need to encourage more people to embrace free culture.

Bad speech, more speech

The question is why the NY Times, a paper that prides itself on accuracy, would allow a piece so blatantly false to be published.

You make it sound as if this was in their news hole, but of course it wasn't. It was an op-ed piece, which is clearly opinion. Your title acknowledges that but the body of your essay seems to ignore it.

This site is known for championing the free exchange of ideas: the answer to bad speech is more speech, etc. So now both you and Taplin have had an opportunity to express yourselves on this topic.

Have you composed a concise, coherent rebuttal to his piece and offered it to the NYT for inclusion on their op-ed page? Seems like a plan.

Re: Bad speech, more speech

Who cares? Even if the asserted facts are as clearly wrong as you seem to think, the guy got his piece published as an opinion, as an attempt to sway others to a point of view. The proper recourse is to refute, not to deny him a platform.

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Who cares? Even if the asserted facts are as clearly wrong as you seem to think, the guy got his piece published as an opinion, as an attempt to sway others to a point of view. The proper recourse is to refute, not to deny him a platform.

No one wants to deny him a platform. Just asking why the NY Times wouldn't send back the oped and say that the facts need to actually be supported, no matter what the opinion is.

I'm fine with the NYT publishing whatever nonsense Taplin wants to publish, so long as it's based in facts, not fantasy.

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This TechDirt article did refute.

He can publish his opinion on whatever platform will publish it. Just as with my opinion that the sun rises in the west. But it does reflect very badly on the platform that would publish opinions based not on facts, but rather contrary to the facts. Made up facts. Or just outright distortions (if not actual lies).

Similarly, I'm just trying to persuade people to a point of view. Everyone should enjoy the benefits of watching an early morning sunrise in the west. The NYT should be PROUD to use its credibility to publish my opinion about western sunrises.

I am getting sick and tired of the same nonsense coming from IP supporters. They're like an obsolete broken record that always keeps repeating the same thing over and over even after being refuted repeatedly. They remind me of many of the stupid pro-IP shills that comment here. Enough is enough. They need to grow a brain before they comment and at least make some effort to say something meaningful based on reality. At this point they're just embarrassing themselves.

Can someone write a op-ed piece in response

While your response is 100% factual, the problem is that the original article was an op-ed piece in the New York Times, which means it carries a certain level of prestige. This means that more people will believe this nonsense simply because it's printed in the New Your Times, and irregardless of whether it's news or an op-ed piece.

Can you write your own op-ed piece to debunk all these claims? Or would the NYT not run it because it doesn't support their RIAA sponsors?

It is also a shame that op-ed pieces like this get to keep conflating the poor starving artist with the actual copyright owners who get paid. The multi-billion dollar publishing industry that requires that artists turn over the copyright before they can get their content circulated and sold are huge industries making lots of money. The artists who actually create the content are forced to sign over the copyrights to their work and due to "creative" accounting are rarely paid unless they become a super-mega-star.

And then, there are many lawsuits by the only-stars that are being cheated out of their royalties. Why is that?

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What is even worse in my mind is the mindset that "poor starving artists" somehow *deserve* to get rich for writing/singing a few popular songs. This is total bullshit and is contrary to all but the most recent handful of decades. In truth, musicians/singers (also called bards) sometimes did starve: they sang for their supper, and if they didn't sing well, or often enough, they didn't get pelted with money to afford their next meal. Painters/sculptists were usually not recognized until after death, and did not see any of the wealth that would later be amassed for their works. This every-stream-or-picture-or-whatever must be paid for mindset is quite new in the long scheme of things, and inevitably benefits the middlemen more than anybody, which is why they keep whining.

I paid for Metallica's Black album on cassette; I bought it again on CD; I'll be damned if I ever pay for it again.

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You don't work, you don't eat. You can't expect still getting paid over the McMenu you served 20 years ago.

Still, something that irks me is... why music copies should be paid for? I mean, I'm reading people that say that they buy their music (not sure in what for, some say in CDs or whatnot).

To be honest, isn't that just stupid? I mean, you're paying for something that is being made artificially scarce by a few, when you know that the marginal value of each copy is close to zero.

Paying for Spotify is one thing. Its added value isn't only providing the music, but a platform to get it easily, without having to mess your brains, with a standard of quality and all that.

But paying for a CD or a song on itunes? What a waste of money.

I mean, we are having a quite lukewarm approach to copyright, to be honest. If artists want to get paid, it's their job to figure out how, the same as with other jobs and professionals.

And no, limiting my ability to do what I want with my private property, while spying, taking away quite a few dozen of rights (due process, for example) so that they can enforce it cheaply isn't the way. They are the only job that got that ability.

It's time for the artists to wake up and to realize that just "doing what you like and playing music" is for kids, not for professionals.

And if they want to get paid, it means that they want to be professionals.

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Still, something that irks me is... why music copies should be paid for? I mean, I'm reading people that say that they buy their music (not sure in what for, some say in CDs or whatnot).

To be honest, isn't that just stupid? I mean, you're paying for something that is being made artificially scarce by a few, when you know that the marginal value of each copy is close to zero.

Why pay? For me at least it's because I enjoy good music and want to reward those that make it, and so I can have an offline copy should I need or want it.

"You made something cool that I enjoy, and are offering it on terms that I find acceptable, so have some money as my way of saying thanks."

Sure I could go without paying, the source of almost all of my music(Bandcamp) allows you to freely listen to a song/album as many times as you want for free(though some albums have a pop-up to remind you to buy if you listen a certain number of times, a pop-up that can be simply closed), but I'm not paying because I feel I have to, I'm doing it to reward the person who made the cool music that I get to enjoy, both as thanks and in hopes they'll make more in the future.

I should point out that my willingness to pay/interest in rewarding a given artist with my time, attention and money is in direct proportion to the terms they offer and how they treat their customers, so even if their music is absolutely amazing if they violate one of the criteria below I'm going to go elsewhere with my money, as I don't believe in rewarding or encouraging bad behavior.

Infected by DRM? No sale.Locked down to a given service? Not happening.Artist has a reputation for lashing out against their fans or treating them badly? I can do without.Price too high? There's always something else to listen to.

I mean, we are having a quite lukewarm approach to copyright, to be honest. If artists want to get paid, it's their job to figure out how, the same as with other jobs and professionals.

And with new, more reasonable services popping up that can be as simple as 'Make something cool, get people's attention so they know about it, and make them want to give you money.'

CwF + RtB as TD/Mike puts it.

Doesn't have to be that complex really so long as your creation is good, people know about it and can get it on reasonable terms, and you aren't like some 'professionals', lashing out against your fans and making them wonder if they really want to be supporting you by buying your stuff.

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till, something that irks me is... why music copies should be paid for? I mean, I'm reading people that say that they buy their music (not sure in what for, some say in CDs or whatnot).

To be honest, isn't that just stupid? I mean, you're paying for something that is being made artificially scarce by a few, when you know that the marginal value of each copy is close to zero.

Paying for Spotify is one thing. Its added value isn't only providing the music, but a platform to get it easily, without having to mess your brains, with a standard of quality and all that.

But paying for a CD or a song on itunes? What a waste of money.

Your fundamental error here is conflating a thing's cost with its value. The incremental cost of one copy of a digital song file may be (near) zero, but that doesn't stop the same file from having value.

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Exactly. All 3 have value, but the value is displaced. Spotify is generally cheaper, but you're buying into the service not a specific artists or track. An iTunes purchase has value that makes it more expensive (for example, you're buying what should be permanent access to that song, no DRM should mean that you keep it even if the label removes itself for iTunes whereas you lose access if they go from Spotify). But, it lacks the additional value that a more expensive physical CD might have (such as the printed sleeve notes and ability to resell).

It's the inherent value of each format that's driven the price, it's also the downside of each format that's driven the tendency for people to go for the cheaper services (for example, an album CD is vastly overpriced if you only want a couple of tracks, while an iTunes purchase is overpriced if you only play it a couple of times). The real problem for the music recording industry is that people understand these values and have largely chosen to pay for the access that's least directly profitable for them.

The AC above is presumably in the camp where he's happy to access Spotify for free and doesn't value ownership as much as he values access to a wide catalogue. Which is fine as an opinion, but it's really just the mirror image of the "Spotify are stealing from us because streams don't make as much as purchases" rubbish.

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No, actually I don't even use Spotify as I don't have the need for it.

I don't buy streaming services and such. I might buy into a Spotify variant if it allowed me to download all I wanted, but to be honest, I just go to my favourite torrent site or similar service and get the music I want.

I'm not into the "as I like the artist, I will send them money in things that I can get for free online because I feel guilty/I want to reward them" or whatever.

No, I don't feel guilty. Times have changed, and the way things are consumed and considered too. Paying for copies of music is wasting or giving away your money, because you can get that same copy for free.

I like an artist and have the chance to go to one of their concerts? I would. Why? Because it has an added value.

Spotify? It doesn't have an added value for me. I can just get the files I want, load them into my player and get it done.

A service that would allow me to download the music I wanted for a monthly fee? I might buy it, if it allowed me to save the time I need to spend finding the stuff I want and depending on the price. My added value would be the extra convenience.

Kickstarter? I might join a campaign if they DON'T sell me music for my investment (and I'd check how they'd make that music available, if they are just going to make another 20€ CD, fuck them).

Yup, I would invest on the project. No, I wouldn't buy music from them. It's the same, but there is a difference in the perception.

What's the difference? That with a Kickstarter or crowdfunding project I'm sending, apart from my money, my trust in them, and I fucking hope that they get the message and make their fucking best music each time. That's the added value I perceive in that action.

When I buy their music, I'm just another number to be added.

I use my money in things that have an added value for me, and in ways that will optimize the uses I have for that resource, because that money, or what represents, really is a scarce resource. Economics 101.

Artists want to earn money from music? Sorry, selling copies of your music won't work: this is 21st century, find ways of doing so without needing to go back to the Cambric age.

Considering the advances in technology, buying and selling copies of music, even a single song, should be an outdated activity already if it wasn't for copyright and its lobbying (and our politicians for taking the bribes given).

It isn't the first time that advances in technology take money and jobs away from people: that's their whole purpose in the end.

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"Paying for copies of music is wasting or giving away your money, because you can get that same copy for free."

Not legally, you can't. You're part of the problem - you won't even be happy with a free Spotify account, so you have to make life difficult for the rest of us who do pay yet get accused of ripping of artists regardless..

Let me put it this way - recorded music clearly has value to you, otherwise you wouldn't waste time and resources obtaining it (even for free, you use these things) and/or listening to it. Yet, you not only won't pay for it, you won't use a legal free service to listen to it.

"Kickstarter? I might join a campaign if they DON'T sell me music for my investment (and I'd check how they'd make that music available, if they are just going to make another 20€ CD, fuck them)."

I agree with the latter sentiment to a degree, but most Kickstarter campaigns give you a wide range of options on what you get in return for your investment, not just a copy of the music. But... the *entire* point of Kickstarting an album is to provide the funds to enable it to exist in the first place. So, you won't help pay to have an album recorded because you "only" get a copy of the music you helped into existence and you can pirate the album anyway if it gets made without your help? What a messed up view of things!

I understand the scarce vs. infinite supply argument and I agree that modern musicians need to look far beyond individual recordings to make a living. But you're so skewed the other way it's rather strange.

Meanwhile, on another planet ...

Let's apply some of that 'logic' elsewhere...

A man walks into an advertising agency.

Customer: Yeah, I'd head that those that you promote tend to see a nice increase of sales, I was looking to see if I could sign up.

Agency rep: Absolutely, sign with us and we can ensure that more people than ever will hear of your business and you'll see a noticeably uptick in sales both short-term and long as you become more well known.

Customer: Sounds great, so what exactly is involved here?

Agency rep: Well first of all we'll need you to sign this contract with us regarding our advertising for you and the rates we'll be charging, then we can-

Customer: Wait. Stop. You want me to pay you to advertise my business?

Agency rep: ... well, yes. We're not exactly in the business for offering advertising for no compensation after all.

Customer: I should think not!

Agency rep: Good, glad we got that straightened up. Now then as I was saying-

Customer: Clearly you should be paying me to use my stuff!

Agency rep: ... you want us to pay to advertise your product/business.

Customer: Of course! You're using my stuff-

Agency rep: To advertise your business and increase your sales.

Customer: Stop interrupting. As I was saying, you're using my stuff, so it's only right that you pay for it's use.

Agency rep: That's certainly one possibility, yes, although I think I have a better one: We could not advertise your business.

Customer: Or you could- wait, what?

Agency rep: Yeah, if the terms of the 'deal' are that we pay you to advertise for you or don't advertise for you at all, I think we'll have to give your 'gracious' offer a pass. Thanks for your time, feel free to come back if you change your mind and are willing to agree to our terms.

Customer: But... how are people supposed to know about my business if they don't hear about it?

Agency rep: That's not our problem now is it? Good day, try not to let the door hit you on the way out.

"it's an embarrassment for the NY Times to have allowed it to be published. Is fact checking dead at the Gray Lady?"

The New York Times has become a tabloid that does opinion pieces. Every week or two you hear about one of their high profile stories being full of "factual errors", that is political speak for totally made up.

"So, basically, after flat out lying throughout the piece, and pretending that Google doesn't already have these tools, he wants a law to require such tools. Note: Google already has everything Taplin is asking for. But it spent $60 million putting that together. If Taplin got what he wanted, he'd lock in Google/YouTube as basically the only players able to handle this market. Does he want new providers and services or is he trying to kill the market entirely?"

well then it would be much easier for them to bribe (lobby) politicians to go after google as a monopoly The goal being to force a take over of the media side of the business or to force a set fee for use of media. All of that fee to be paid to the RIAA owners who will then take a large cut and disburse pittance to artists...if they can find the artists.

That's some word salad from the guy who produced "My Science Project" (1985)

Sure, Taplin, who produced "My Science Project" (1985) may be against streaming in every way, but the real question is, what does the producer of "Mom and Dad Save the World" think?

I mean, if you stop and think about it, this gives a whole new alternate interpretation to "My Science Project." It's a movie about how tech savvy teenagers, fueled by fair use's disrespect for proprietary time and unable to create anything on their own (science project or no) end up "remixing" and "mashing up" time from different eras and end up nearly destroying everything. It's no coincidence the nerd bad guy in this movie looks like Lawrence Lessig. Finally, the guy who helps the heroes when they realize their mistake is a hairy rust-red caveman who is equal parts baffled and terrified of the technology of the modern world, clearly a metaphor for Taplin's friend David Lowery.

The nerd girl with glasses who helps "remix" time with the Science Project and takes off her glasses who and turns out to be superfoxy looks like Taplin's regular bete-noir, none other than Nina Paley, who Taplin said was far from talented.

Another fun fact: MY SCIENCE PROJECT is freely available to view on YouTube. Why? Nobody cares. Remember when Doctorow said that obscurity is a greater enemy than piracy?

Taplin going after Paley just goes to show the guy isn't pro-artist at all. That's an empty pose. He is pro-studio, pro-gatekeeper. Anyone who doesn't create in the studio system doesn't count as an artist, which tells you a lot about this guy.

My all time favorite Taplin story is that he keeps on saying what a shame it is that The Band, who once got $100K in mailbox money every year in the 1990s, get way, way less now. Well...The Band hasn't toured since the 1990s and hasn't come out with a record in all that time, so why does Taplin believe the job of copyright is to keep people who aren't working paid in perpetuity?

I swear, I could not have asked for a better opponent for streaming. A clueless, out of touch has-been who made one of the shittiest Back to the Future clone teen movies ever believes that if not for streaming, he'd make more money, and that the biggest problem with copyright is that people like Nina Paley can make masterpieces and that music groups that haven't toured or made an album in 20 years aren't making money?

What wild thing is Taplin going to say next? "If not for streaming, I could have made My Science Project 2?"

One correction on Taplin's Magnum Opus

Up until this instant, I thought it was AMERICAN NINJA b-movie cheeseball and Canon Film star Michael Dudikoff who starred in Taplin's MY SCIENCE PROJECT. I actually just looked it up, and it was actually some ex-model named John Stockwell.

How sad do you have to be when your movie doesn't even have bottom of the barrel has-been Michael Dudikoff, but actually has a Dudikoff knockoff?

By the way, fun fact: Dudiko - er, I mean John Stockwell's character in the movie was named "Harlan." Named after the famous anti-fair use lawsuit-happy midget crank Harlan Ellison?

I'm still waiting for an explanation for why copyright needs to be life + 70 years.

I mean, we've all heard the justification of "you'll be dead before it happens, so who cares" and "it's still not an infinite period of time". What I have yet to hear is an explanation for why if it was less than that, say life + 65 years, the structure of copyright would irreparably collapse and content creators would throw up their hands en masse and just flat out refuse to create anything.

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The closest I've run across that's at least somewhat rational(even if I disagree with it) is that longer copyright = more 'value', increasing the incentive to create more, and even that argument falls apart when you consider that even if it's true, that something might be created with life+70 but not say life+50 the fact that it's still locked up for what's effectively forever means it's not doing much to add to culture, making for a lousy deal for the public.

If you were to look at it honestly, ignoring the laughable excuses or justifications thrown out in it's defense the answer is simple enough: Longer duration allows private companies control for longer, allowing both a longer monopoly and resulting chance for profits and reduced competition with more recent creations.

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The closest I've run across that's at least somewhat rational(even if I disagree with it) is that longer copyright = more 'value', increasing the incentive to create more, and even that argument falls apart when you consider that even if it's true, that something might be created with life+70 but not say life+50 the fact that it's still locked up for what's effectively forever means it's not doing much to add to culture, making for a lousy deal for the public.

That bit has never made sense for the exact reason you brought up. While it's arguable (based on Whatever's favorite explanation) that if copyright lasted as long as the author did, the number of murder attempts against content creators would suddenly skyrocket, the content creation doesn't change no matter how long after death the copyright applies. Either it does absolutely nothing, or a corporation claims the right to it, in which case it lasts forever anyway.

Seriously, where are all the artists, musicians and writers who wake up one morning and say to themselves, "Today feels like a mighty fine day for creating culture. ...Oh wait, it only lasts for 70 years after my death? Oh no no no no, that's just not going to work. Anything less than a hundred and twenty simply won't do"?

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Maximalists want to treat copyright as actual property, in this case a set of title deeds that entitles you to full ownership of the rights and royalties, etc. This pretty much turns it from a temporary distribution monopoly into a trust fund fountain of money that keeps on flowing.

Although they love to wibble on about incentive to produce, the actual truth is that they love the idea of acting as lords of their own mini-fiefdoms, collecting rents for a hundred years or more. This is why you get children and grandchildren being wheeled out as a reason to extend copyright terms; having a popular copyrighted item is like having a mansion to leave to your kids. "Incentive" is a red herring.

So true.

the most disturbing thing about this is that it perpetuates the myth that it's "content creators" v. "the tech industry." This is nonsense. Technology has been a major force in enabling more content creators -- including myself -- to create content, to promote it, to distribute it, and to monetize it.

This is so true. The Internet, and these companies like YouTube and SoundCloud etc are the only way I can have an audience. There is no way I can play live. A thumb that was broken in the past, that now, at my age, causes me grief after a very short time playing my guitar has seen to that. So publishing my musical creations on line is the only way I can be heard by anyone.

I may never become rich or famous, but I know with certainty, that won't happen if I have to go through a legacy gatekeeper.

This isn't a zero sum game. There are opportunities for everyone to benefit, and setting up this false dichotomy that when one wins the other loses, Taplin and the NY Times are actually setting everyone up to lose...

These are people who cannot accept that anything other than zero-sum games could possibly exist. The joy they get in benefiting from something is reduced by the amount of joy anyone else might also get from it. They don't enjoy the prizes they win, they enjoy depriving everyone else of so much as a 'Participant' ribbon.

These are subhumans incapable of understanding anything more complicated than a children's board-game. They shouldn't be running and working for corporations, they should be in line to board Ark-Ship B.

Re: Rip 'er a new one...

Music Industry

I usually agree with every posting on this web-site, which is very valuable. However, as a practicing attorney in the music business, I must say that you are way off base here. I certainly agree that there is nothing inherently wrong with new technology. Services such as Spotify, You Tube (with whom music publishers have been forced into a licensing arrangement for covers of music which is very unfair to artists and composers), and Pandora have provided the public with broad access to music never before imaginable, and little or no cost to consumers (Spotify, for example, still has a free and paid tier---even on the paid tier, virtually every recorded song imaginable is available for $10 monthly). People love these services because of the choices they give them. But the license and royalties these services provide are simply inadequate to assure that composers and artists can be fairly compensated for their work. I don't care if record labels or music publishers make money but I do care about working musicians. These services have cut drastically into record sales (collectively digital downloads, CD's and Vinyl). Today it is possible to have a legitimate "charted" dance hit with 2,000 downloads or less with a retail value of less than $2000. Many of my artist/composer clients have made hit records that are staples of the dance music scene nationwide, and they make almost nothing---it is really unfair and ridiculous. Unless you are famous (Lady Gaga or Beyonce), you won't make enough money from royalties, license fees, and record sales to continue your music career. The checks individual artists receive as a result of downloads of their music on Spotify, You Tube, etc are a pittance compared to what they would previously earn from CD sales and publishing for songs of equal public acclaim (i.e., songs that make the Billboard top 100 in various charts).

Of course, if we required Spotify and other services to pay adequate royalties to compensate artist and composers in a manner comparable to amounts paid in the old system, these services would fail financially. Sure they pay billions but it is not even a fraction of what they should be paying if artists are to be compensated fairly.

I think we can agree that the purpose of copyright law is to provide incentives for talented artists and writers to devote their careers to their work. But the system is broken. New technology is great but we have to recognize that it has cheapened (I won't say looted) the value of the work of artists because it allows consumers to get a free ride---most people can hear their favorite songs and artists without paying a dime. Even the $10 monthly subscription fees paid for subscription, commercial free services, are ridiculous low. There is simply not enough money in the way the new technologies are deployed to fairly compensate artists and composers. A monthly subscription price for Spotify for $100 or more would start to raise the funds necessary to pay artists reasonably, and would be a more realistic representation of the value consumers get from the service (assuming they would otherwise have bought 100 music downloads per month). But Congress has made a mess out of the copyright laws, which has allowed technology companies such as You Tube and Spotify to profit handsomely while diluting the value of music as a whole. Simply put, people who listen to music should pay a fair price for doing so, whether for downloads, subscription fees or through advertising. Right now, however, consumers and companies like Spotify and You Tube are getting a free ride at the expense of composers and musicians (once again, I could care less about record companies and publishers). The only solution is a revision to copyright laws that requires that these services generate sufficient funds through subscriptions and otherwise to fairly compensate artists. That means that consumers will have to start paying for their music again.

Small, repeated payout vs Large, short term payouts

Of course, if we required Spotify and other services to pay adequate royalties to compensate artist and composers in a manner comparable to amounts paid in the old system, these services would fail financially. Sure they pay billions but it is not even a fraction of what they should be paying if artists are to be compensated fairly.

The core of the problem seems to be that line there, it's hard to 'fairly compensate artists' if the amount you're asking for would bankrupt the service in question in short order, at which point the artists get nothing. A $100 a month subscription cost might be 'enough', but I can guarantee that if Spotify or any other service tried charging that much they'd be out of business within the year at most, as the number of people who are willing to pay $1,200 when before they were paying $120 could likely be counted on a single hand.

In addition comparing what was offered by the 'old system' isn't really helping, as different services will pay different amounts, and just because X amount was paid to a handful before doesn't mean that they are always owed X, or that everyone who enters the field is owed that much. Having the number of musicians explode in number while expecting them all to be paid just as much as when there was only a handful is an unreasonable expectation, more competition and choices means the money is going to be spread out more, that's just how it works.

I think we can agree that the purpose of copyright law is to provide incentives for talented artists and writers to devote their careers to their work.

Not really, no. As I see it the purpose of copyright is (or was anyway, before it was twisted around by the companies buying the laws) to benefit the public by providing incentive to creators of all types to create more stuff, it has nothing to do with them being able to make a living off of doing so.

The number of people who can make a living wage from writing or making music is vastly dwarfed by those to whom it's a hobby or something they do on the side, good for a little extra income but not enough to live on. As far as I know that's how it's always been, and likely how it always will be, so while it's certainly nice if someone is successful enough to be able to turn their hobby into their full time job it should neither be expected nor believed to be 'owed'.

Simply put, people who listen to music should pay a fair price for doing so, whether for downloads, subscription fees or through advertising.

Define 'fair price'. If I listen to a song once, how much would you say would be a 'fair price' for me to do so? If I buy a song to listen to it as many times as I want, what is the 'fair price' that it should cost me?

One of the problems I have with the idea that services like YT or Spotify aren't 'paying enough' is that in the case of streaming services at least they're already paying the vast majority of their income to the labels(who may or may not actually pay the artists their share). If a service only makes 5 cents from a given transaction then you can't reasonably expect them to pay out 10, and the idea that they should just charge more so they can pay out more only works if you assume that increasing the price won't result in people dropping the service, leaving you right back where you were if not worse off.

The only solution is a revision to copyright laws that requires that these services generate sufficient funds through subscriptions and otherwise to fairly compensate artists.

That's not something you can legislate, as that depends on the market and what it's willing to bear, not the laws involved. You could theoretically write a law that forced streaming services to charge X per person per month, but if the customers aren't willing to pay that much then all you've done is driven the service out of business, and that does no good for either service or musician.

This is not something that can be 'fixed' via legislation, if you want people to pay more for music than they currently are then convince them that what you're offering is worth more, don't try to force them to pay extra through laws as that's just not going to work.

That means that consumers will have to start paying for their music again.

People are paying, that they might not be paying 'enough' isn't their problem, and it's not something you can change just by writing a new law or two. The 'golden era' of the superstar musicians is drawing to a close, these days it's more about a lot of people making decent amounts rather than a tiny minority scooping up the lot and leaving everyone else in the dust. The market has changed, those within it either adapt and survive, or insist that it remains how it always has and fail.

"in a manner comparable to amounts paid in the old system"

Most artist got little to no money based on the old system. The labels are notorious for cheating actual artists out of their cut.

So for most of us, we're actually better off taking our chances getting our stuff on the net and offering on the services.

Between web-sales and tours, John Coulton (known mostly for his Portal song Still Alive) makes about $150K. I'd rather take my chances for half of that then risk facing Hollywood's opaque accounting system.

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I'm curious to know if you represent record labels or artists. Because these two groups have very different goals and desires when it comes to how music revenue gets distributed.

"But the license and royalties these services provide are simply inadequate to assure that composers and artists can be fairly compensated for their work."

BS. The money these services generate could fairly compensate composers and artists for their work if a massive percentage of it wasn't kept by the record labels.

"Of course, if we required Spotify and other services to pay adequate royalties to compensate artist and composers in a manner comparable to amounts paid in the old system, these services would fail financially."

Again, the problem is not the amount of money the services pay, it's how much the labels keep.

"Sure they pay billions but it is not even a fraction of what they should be paying if artists are to be compensated fairly."

See above.

"The only solution is a revision to copyright laws that requires that these services generate sufficient funds through subscriptions and otherwise to fairly compensate artists."

At the risk of repeating myself, how about instead a revision to copyright laws that requires that record labels pay enough to fairly compensate artists.

From all the points you've made, I suspect I know the answer to my first question.

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Many of my artist/composer clients have made hit records that are staples of the dance music scene nationwide, and they make almost nothing---it is really unfair and ridiculous. Unless you are famous (Lady Gaga or Beyonce), you won't make enough money from royalties, license fees, and record sales to continue your music career.

I'm not sure how to reconcile these two sentences. What's the difference between being a staple of the dance music scene nationwide, and being famous? Is it the number of plays, or the name recognition?

Surely royalties should be based on the number of plays, and not the name recognition? Unless Lady Gaga and Beyonce have managed to leverage their name recognition to negotiate better royalty schedules, but that has nothing to do with the services playing the music, and everything to do with the labels.

Of course, if we required Spotify and other services to pay adequate royalties to compensate artist and composers in a manner comparable to amounts paid in the old system, these services would fail financially.

Yes, if they are forced to pay more, then they will disappear, and the thousands of artists who were making money from these services will no longer be able to make money. The labels will once again become the only way to secure distribution, and society will benefit... how?

I think we can agree that the purpose of copyright law is to provide incentives for talented artists and writers to devote their careers to their work.

Nope. The purpose of copyright law is to provide incentives for talented artists and writers to create works. And untalented ones, too. Whether they are able to devote a career to it or not is completely orthogonal to the law, though it does happen to provide a mechanism to do so - but as has been discussed on this site at length, that is just the implementation of the law, not the intent.

You do raise good points, and I tend to agree with you that just because Spotify and Pandora are paying most of their revenue in licensing doesn't necessarily prove that they're paying enough... but all of the figures that get thrown around seem to indicate that these services actually are paying fair rates, but that money simply isn't making it to the artists, instead getting lost in the collection agencies and labels. It seems like your anger should be at the labels for paying poor royalties, rather than the services for not paying the labels enough.

I'm curious if you have any visibility over musicians that don't rely on royalties for income - those who work on music for movies, games and tv shows, or playing live music exclusively, and what those artists think of modern music services?

Re: Music Industry

For context, Maurice Ross is a lawyer who now runs a record label that specializes in gay music, so he has a pretty vested interest in singing the praises of the pro-IP camp.

He's posted responses on Techdirt before, arguing in favor of the actions of Malibu Media and Prenda Law, and has previous appeared on FightCopyrightTrolls and DieTrolldie to defend the behavior of the aforementioned groups.

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He goes further than that. Maurice has claimed that enforcing piracy is so hard and the standards for proving guilt are so high, it shouldn't matter that the wrong people were accused or that Lipscomb and Steele had to break all the rules to get a conviction.

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"Of course, if we required Spotify and other services to pay adequate royalties to compensate artist and composers in a manner comparable to amounts paid in the old system"

Like many people with your opinions, your facts are faulty and thus your conclusions incorrect. The fact is that the old system does not apply here.

The "old system" revolved around purchases. Spotify et al revolve around rentals. You cannot expect the same money for a rental as you can for a purchase. This cannot be done in any industry.

It's that simple. You need to address the reality of the marketplace, and if that's changed as completely as this one has in its fundamentals, you cannot apply the models and costs that applied before. It may feel sad that you have to do more than release a few records in this day and age to make a living, but that's reality. Deal with it.